Regina v Plevac

[2004] NSWSC 916

CITATION:	Regina v Plevac [2004] NSWSC 916
HEARING DATE(S):	23/09/04
JUDGMENT DATE:	14 October 2004
JUDGMENT OF:	James J at 1
DECISION:	Life sentence redetermined
CATCHWORDS:	Criminal law - sentencing - murder - life sentence redetermination - prisoner murdered his wife
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act
CASES CITED:	R v Bugmy (1990) 169 CLR 525 R v Bush: unreported, NSWSC 25 September 1992 R v Everett: unreported, NSWCCA 13 December 1995 R v Peacock: unreported, NSWSC 24 April 1992 R v Rosevear [1999] NSWSC 732 R v Stephens [1999] NSWCCA 80 R v Whitmore [1999] NSWCCA 75
PARTIES :	Regina v Josef PLEVAC
FILE NUMBER(S):	SC 02/002
COUNSEL:	A Haesler/W Laing - Applicant P G Ingram - Respondent
SOLICITORS:	Legal Aid S C Kavanagh

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70041/90
LOWER COURT JUDICIAL OFFICER :	McInerney J

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL LAW DIVISION

JAMES J

14 October 2004

02/002 – Regina v Josef PLEVAC

JUDGMENT

1 HIS HONOUR: This is an application by Josef Plevac pursuant to sch 1 of the Crimes (Sentencing Procedure) Act for the determination of a term of imprisonment and a non-parole period to replace a sentence of imprisonment for life, which was imposed on the applicant by McInerney J on 28 August 1996, after a jury in a trial conducted before McInerney J had found the applicant guilty of the murder of his wife Dana Plevac on 22 September 1989.

2 The applicant has continued to deny that he murdered his wife but in the reply to the statement of facts filed by the Director of Public Prosecutions pursuant to Practice Note 57 accepted that the Director’s statement of facts set out the Crown case on which he was convicted and the following statement of the facts of the case and the course of the criminal proceedings against the applicant is taken from the Director’s statement.

FACTS OF THE CASE

BACKGROUND

3 The applicant and his wife Dana Plevac had separated in October 1988. They had a daughter Natalie who was five years old at the time of the murder. An apprehended domestic violence order which restrained the applicant from approaching his wife and daughter was in force at the time of the murder.

4 In February 1989 the applicant himself suffered serious burns causing scarring in a fire in the house in which he was living. The burns became infected and the applicant was admitted to hospital.

5 On 19 September 1989 while he was in hospital the applicant told his daughters from a previous marriage who were visiting him, that he still loved his wife and wanted her back. He spoke to his daughters about how scarred and ugly he was and said that he wanted his wife to feel the same pain he was feeling.

EVENTS OF 22 SEPTEMBER 1989

6 At about 6.30 in the morning of 22 September 1989 the applicant, who was working as a milkman, went to a garage where he delivered milk each day and purchased ten dollars worth of petrol.

7 At about 8.30 in the morning of 22 September 1989 Dana Plevac and her daughter Natalie left their unit on the fourteenth floor of a block of home units and approached the lifts on the fourteenth floor. A person suddenly appeared, who on the Crown case was the applicant. His body, apart from his eyes, was totally covered in black clothing. The applicant threw liquid from a container over his wife and set fire to the petrol. Natalie watched as her mother “went up in flames”. Dana Plevac fell to the ground and crawled into a lift. The applicant ran to the door of the stairs near the lifts.

8 The manager of the block of home units heard the fire alarm go off and saw on a fire board that the fire was on the fourteenth floor. He caused the lift which was on the fourteenth floor to descend to the ground floor. When the door of the lift opened, he saw a person “that was very much alight at the time and was screaming for help. She came out of the lift, she stopped and she fell over and the flames blew up … and she was lying there. She was pretty much burning”.

9 At about 8.30 in the morning another resident whose unit was on the second floor of the block of units and who was about to walk down the stairs smelt smoke and heard a woman crying for help. She saw a man who was naked from the waist up run down the stairs. He appeared to have burns on his back and a bandaged arm and was carrying clothing. He left the stairs on the first floor and the resident observed him outside the block of units running toward the Great Western Highway.

10 A police officer found a plastic container smelling of petrol on the stairs. In the opinion of a senior fire brigade officer a hydrocarbon fuel such as petrol had been used in lighting the fire.

11 Dana Plevac told a fire officer that someone had thrown petrol over her but that she did not know who it was. She was taken to hospital but died at approximately 2.40 pm as a result of full thickness burns to 90 per cent of her body.

12 A number of witnesses observed a man who was not wearing a shirt walking or running along the Great Western Highway and later made photographic identifications of the applicant as being the man they had seen.

13 At about 11.30 in the morning of 22 September 1989 a hairdresser in Katoomba cut the applicant’s hair. She noticed black particles that looked like soot in the applicant’s hair. Another hairdresser working at the salon smelt a strong odour of petrol while the applicant was in the salon.

14 At about 11.30 am the applicant telephoned a friend and told her that he was in Katoomba. At about 3.30 pm the applicant arrived at that friend’s house. The friend, who had seen the applicant the night before, noticed that he had had his hair cut. The applicant told her that he had had his hair cut in Fairfield.

15 The applicant asked the friend to telephone his wife’s place of work. The friend did so and was told that Mrs Plevac was dead. She told the applicant, who said, “it can’t be”.

16 The applicant was arrested at about 4 o’clock in the afternoon of 22 September 1989. A police officer observed old scarring on the applicant’s body and what appeared to be fresh burns on the applicant’s left side. A police medical examiner who examined the applicant formed the opinion that a raw, weeping area on the applicant’s upper arm and the left side of his chest and abdomen indicated burns which were less than twenty-four hours old. The applicant admitted to the medical examiner that the fresh burns had been sustained that morning.

17 When questioned by police, the applicant denied killing his wife. He said that on 22 September 1989 he had gone to the service station and bought petrol, that he had later gone to Katoomba and that he had then returned to Sydney and visited the friend. He said that he had last seen his wife several nights before.

18 At the trial the applicant made an unsworn statement to the jury. In his unsworn statement he said that on 22 September 1989, by arrangement with his wife, he had gone to his wife’s unit to collect some of his clothes. His wife, who had come out onto the balcony of the unit, told him to come upstairs and wait on the stairs and the applicant did so. The applicant took off his shirt so as to be ready to put on a clean shirt. He heard his wife and his daughter scream. He opened the door to the fire stairs and saw a man in a track suit. He saw his wife and it appeared to the applicant that she was holding the applicant’s clean clothes in a fire. The applicant said, “I jumped towards her because I got bandage on my hand. I pull everything out and I must have been burnt, I don’t know, but at that stage I completely lost it. I know now but at that stage I lost, panicked and I ran. I ran to my car”. The applicant said that he loved his wife and when people talked about him saying that he wanted Dana to feel pain, it was not physical pain but “I was thinking about pain which was in my heart and how I was missing her, nothing else”. The applicant closed his statement as follows: ‘I didn’t kill my wife, I am innocent and if they do proper job they will find the real killer. That is all what I think”.

CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

19 The applicant was arrested on 22 September 1989 and charged with the murder of his wife. Bail was refused and the applicant has been continuously in custody since 22 September 1989.

20 At a trial of the applicant held in February 1990 before Finlay J and a jury the jury found the applicant guilty of murdering his wife. On 14 February 1991 Finlay J sentenced the applicant to penal servitude for life commencing on 22 September 1989.

21 In his remarks on sentence Finlay J observed that s 19A of the Crimes Act (since repealed) did not apply, because committal proceedings for the murder had been instituted against the applicant before the date on which s 19A commenced (12 January 1990). His Honour found that under the old s 19 of the Crimes Act, which was applicable, the applicant’s culpability was not significantly diminished by any mitigating circumstance and, consequently, a life sentence was mandatory.

22 Finlay J found that “on an objective assessment this callous, planned and appalling murder places the offence in the worst category”. However, in his remarks on sentence Finlay J did advert to the possibility of the applicant subsequently making an application to have the life sentence, which Finlay J was about to impose, redetermined and replaced by a determinate sentence. His Honour said that, notwithstanding the objective seriousness of the offence, “there are subjective matters which would be appropriate to consider and to take into account in his favour if a determinate sentence were to be imposed”. His Honour said that it might be of assistance, in the event of the applicant subsequently making an application for a redetermined sentence, if he gave the applicant credit for the period he had been in custody and his Honour, accordingly, made the sentence he pronounced commence, not from the date of sentencing, but from the date the applicant had been in custody.

23 An appeal by the applicant against his conviction at the trial conducted before Finlay J was on 5 October 1995 allowed by the Court of Criminal Appeal, on the grounds that evidence of an alleged previous threat by the applicant to burn his wife had been wrongly admitted at the trial. A new trial was ordered.

24 A second trial of the applicant on the charge of murdering his wife took place in August 1996 before McInerney J and a jury and the jury returned a verdict of guilty. On 29 August 1996 McInerney J imposed the same sentence as Finlay J had, that is penal servitude for life commencing on 22 September 1989. McInerney J, who was required to apply the same sentencing law as Finlay J had applied, simply remarked that in the circumstances of the offence, the only sentence he could impose was penal servitude for life.

25 An appeal by the applicant against his conviction and sentence at the trial before McInerney J was dismissed by the Court of Criminal Appeal.

EVIDENCE FOR THE APPLICANT

26 I have already noted that in the reply to the statement of facts filed by the Director of Public Prosecutions the applicant accepted that the statement of facts set out the Crown case on which he was convicted. To the applicant’s notice of reply were annexed a number of documents, including a certificate that the applicant had while in prison completed a course of Christian instruction, a TAFE statement of attainment by the applicant in a manufacturing and engineering training programme, a statement of attainment in the responsible use of alcohol, favourable references from overseers of a prison workshop in which the applicant had been employed for five years, a reference from an Anglican prison chaplain and a reference from a Catholic priest.

27 To a supplementary notice of reply to the statement of facts was annexed a copy of a report by Dr William Lucas, psychiatrist, dated 9 December 2003. Parts of Dr Lucas’ report were as follows:-

“Mr Plevac is a fifty-four years old man born in Czechoslovakia who came to Australia in January 1977. He grew up in the city of Brno as the youngest of three brothers, completed his secondary education at fifteen and then spent three years as an apprentice fitter. He worked for a year, did two years compulsory military training and then worked, married and fathered two daughters. In 1978, one year after coming to Australia, he and his wife divorced. He married again in 1984 and the death of his wife in 1989 resulted in his conviction for murder. The daughter from this marriage went into the care of his first wife; he has had minimal contact with her but knows she is at university”.
. . .
“It is difficult at this remove, fourteen years after the events, to be certain about what psychiatric diagnoses he may have had in mid-1989. At least he would have been suffering an adjustment disorder with depressed mood but major depression may have been present for a period. He described recovering motivation and trying to get on with his life and taking a job with Qantas. In addition, there are strong suggestions of post-traumatic symptoms including nightmares and strong avoidance symptoms with regard to fire. The experience of being burnt and then having lengthy and painful treatment would have been stressors sufficient to cause these symptoms. It is not now possible to know whether he developed sufficient symptoms to justify the diagnosis of post-traumatic stress disorder”
. . . .
“In my opinion, the point has been reached where it would be useful for Mr Plevac to have his sentence determined. The setting of a minimum sentence would allow him to plan for the future and for the correctional authorities to change his classification as appropriate, moving him towards a position where he could be considered for release. His history, personality and attitude to his situation make me reasonably confident that he can be rehabilitated to settle in the community without undue difficulty. Despite his age he strikes me to be a man who is likely to find employment or another way of usefully occupying himself.
When he thought it necessary Mr Plevac has sought psychological assistance during imprisonment and I believe he will do so in future and also co-operate with supervision. He is in contact with religious organisations and speaks regularly to a priest. His intention is to remain in the Bathurst or Orange region. I think it unlikely that he will require psychiatric treatment after release but if he or his supervising officer believe this is indicated there should be no difficulty in arranging a referral”.

SERIOUS OFFENDERS REVIEW COUNCIL REPORTS

28 Two reports by the Serious Offenders Review Council (“SORC”) were made to the Court, dated 6 May 2003 and 3 August 2004.

29 In its first report SORC said that the applicant had progressed through the prison classification system as follows:-

A2 1 March 1991
B 1 July 1998

30 During his time in custody the applicant had had only one custodial offence “28.10.1993 fighting”, which the applicant denied committing and of which there were no further details.

31 The annexures to SORC’s first report consistently show the applicant as having been throughout his imprisonment polite, co-operative and a good worker. He had few or no family ties, having no contact with his first wife or any of his children.

32 There are frequent references in the documents annexed to the report to the applicant maintaining his innocence and denying that he murdered his wife.

33 A report by two psychologists of 29 October 1997 contains the following passages:-

“Mr Plevac denied that he set fire to his wife. He believed that his wife was involved with arranging the fire at his house and wanted him dead. He produced documentation written by his wife that indicated she was determined to have him put in gaol.
. . .
“The more Mr Plevac was questioned about the offence, the more evasive he became. Eventually he stated that he knew the true facts about the fire and the murder but could not disclose these to a government worker”.
. . .
“Mr Plevac may well be experiencing a range of psychological problems. For instance he displays avoidant behaviour, he does not seem to have any social support and may be quite lonely. He is grieving over the loss of contact with his daughter from his second marriage as she is now in the custody of his first wife. He has a diagnosis of depression. Furthermore, he has to live with the fact that he is serving a life sentence when he claims that he is innocent”.
. . .
“Mr Plevac has no need to participate in other programmes in gaol. He is literate in more than one language, he has qualifications in mechanics and has always been employed inside and outside of gaol. He has no identified drug or alcohol problems. He acknowledges that during periods of stress and depression he has sought psychological counselling”.

34 A report by two psychologists of 28 May 2000 states:-

“Mr Plevac has had individual contact with psychological services since the board’s last visit. Mr Plevac is denying guilt for the offence. Given this, there is little that can be offered from psychological services in terms of addressing his offending behaviour. His level of contact is approximately once per month at this stage to address personal issues”.

35 In the second SORC report it is stated that the applicant’s classification has remained “B”. The applicant has continued to be well regarded for his work in prison. He has continued to maintain his innocence. He has shown some reluctance to participate in some programmes which Correctional staff think might assist him.

Submissions of the Parties

36 Counsel for the applicant submitted that, Pursuant to cl 4(1)(a) of Sch 1, I should set a specified term for the sentence together with a non-parole period for the sentence.

37 Counsel for the applicant submitted that, so far from either of the sentencing judges making any recommendation or expressing any opinion that the applicant should never be released from imprisonment, Finlay J in his remarks on sentence, while referring to the objective seriousness of the offence, had expressly contemplated that an application might be made to have the life sentence, which he was about to impose, redetermined and, impliedly, had contemplated that such an application might be successful. It could be inferred that McInerney J, by following Finlay J in making the life sentence he imposed commence from the date on which the applicant was taken into custody and not from the date of sentencing, had also contemplated that a successful application might be brought to have the life sentence replaced by a determinate sentence.

38 Counsel contended that the SORC reports showed that the applicant during fifteen years of imprisonment had been close to a model prisoner and, in particular, had had an excellent record as a worker in prison workshops.

39 Counsel necessarily accepted that the murder was an objectively serious offence and that the applicant had continued to maintain his innocence, so that it could not be said that the applicant had demonstrated any contrition. However, counsel pointed to passages in the reports of the prison psychologists and in the report of Dr Lucas and, in particular, to Dr Lucas’ opinion that he was reasonably confident that the applicant could be rehabilitated to settle in the community without undue difficulty.

40 Counsel pointed out that, because the applicant has so far progressed only to a B classification and would be unlikely to be released until he had progressed through the various C classifications, the applicant would almost certainly remain in custody for at least another eighteen months (unless I set a sentence which would expire in less than eighteen months, which counsel did not contend for).

41 Counsel for the Director of Public Prosecutions submitted that I should, pursuant to cl 4(1)(c) of Sch 1, decline to set a specified term for the sentence and decline to set a non-parole period for the sentence. Alternatively, counsel submitted that I should merely set a non-parole period for the sentence and not set a specified term for the sentence in place of the sentence of imprisonment for life and that the non-parole period should be significantly longer than sixteen and a half years.

42 Counsel for the Director of Public Prosecutions submitted that the murder had been an objectively grave offence, with nothing to mitigate its objective gravity. The applicant had pleaded not guilty at the trial and had continued over fifteen years of imprisonment to maintain his innocence, not demonstrating any contrition at all for the murder. Because the applicant had continued to maintain his innocence, it had not been possible to provide him with psychological services which might have assisted his rehabilitation. Counsel submitted that, if the applicant was released, there would be at least a low level risk of his re-offending, for example if after his release he formed a relationship with another woman.

DECISION

43 In considering the applicant’s application I have had regard to the provisions of Sch 1 of the Crimes (Sentencing Procedure) Act. The applicant is eligible to apply for a determination under Sch 1. He is not subject to a non-release recommendation and he has served at least eight years (in fact much more than eight years) of his sentence. The applicant has not been convicted of any offence, apart from the offence of murdering his wife. I have had regard to all of the circumstances surrounding the offence and I have had regard to the matters referred to in cl 7 of Sch 1. The applicant was forty years old at the time of committing the offence and is now fifty-five years old. I have had regard to the remarks on sentence of Finlay J and McInerney J.

44 So far as the objective facts of the murder are concerned, the murder was aptly described by Finlay J in his remarks on sentence as “callous, planned and appalling” and in the worst category of murder. The applicant murdered his wife by throwing petrol over her and then striking a match and setting her alight. The applicant clearly had the intention of killing his wife. Although Finlay J did not make any express finding, his Honour would not have described the murder in the terms in which he did, if he had considered that the applicant had merely had an intention to cause grievous bodily harm to his wife. The murder was premeditated and planned. Having himself suffered painful burns as a result of the fire of February 1989, the applicant had determined that his wife should suffer an agonisingly painful death by being burnt. The applicant bought petrol at the service station on the morning of 22 September 1989 and equipped himself with matches. He clothed himself so that all of his body, apart from his eyes, was covered, to eliminate or lessen the risk of his being identified. He went to the block of units where his wife lived and waited on the stairs for her to leave her unit. He committed the murder in the presence of the five year old child of his wife and himself. After committing the murder, the applicant fled and took steps such as having his hair cut, in an attempt to destroy incriminating evidence.

45 The applicant pleaded not guilty at the trial and over the fifteen years of his imprisonment has continued to deny that he committed the murder and has failed to demonstrate any contrition. Because he has not admitted his guilt, he has not received psychological counselling which might have assisted his rehabilitation.

46 However, notwithstanding the objective seriousness of the offence and the lack of contrition, I consider that I should grant the application and set both a specified term for the sentence and a non-parole period for the sentence.

47 As I have already indicated, Finlay J, while describing the objective seriousness of the offence in the terms in which he did, nevertheless considered that there were subjective matters which it would be appropriate to take into account in favour of the applicant, if an application for a determinate sentence was subsequently made and his Honour clearly contemplated that such an application might be made and that it might be successful. I consider that it can be inferred, although less clearly, that McInerney J, in making the sentence he imposed commence from the date on which the applicant went into custody, was of the same opinion.

48 Finlay J did not in his remarks on sentence set out the subjective matters favourable to the applicant which he had in mind but they would have included the applicant’s otherwise blameless life, with no previous criminal convictions, and his good employment history.

49 That the applicant has not demonstrated any contrition is a significant matter. In R v Stephens [1999] NSWCCA 80, an unsuccessful appeal from a redetermination of a life sentence by McInerney J on the grounds that the redetermined sentence was excessive, Sheller JA who delivered the leading judgment said at pars 38 and 39 of his judgment that McInerney J had been entitled to find that the prisoner had yet “to face up to” the gravity of the crime he had committed. However, I do not accept a submission which was made to me by counsel for the Director of Public Prosecutions, which was sought to be based on what Sheller JA had said in Stephens, that a judge should not set a determinate sentence if the offender has not demonstrated contrition. I do not consider that what Sheller JA said in Stephens supports such a submission and I note that in Stephens McInerney J had in fact granted the application for a redetermined sentence and had set a determinate sentence with a minimum term and an additional term and that the appeal to the Court of Criminal Appeal was against the severity of the redetermined sentence. In a number of judgments Studdert J of this Court has held that the absence of contrition cannot of itself necessarily defeat an application for a redetermination of a life sentence R v Peacock (unreported 24 April 1992); R v Bush (unreported 25 September 1992); R v Rosevear [1999] NSWSC 732 at par 13).

50 The applicant has now spent fifteen years in prison. I accept his counsel’s submission that he has been close to a model prisoner and that, in particular, he has had an excellent record as a worker in prison workshops.

51 I also accept the opinions expressed by Dr Lucas which I have quoted earlier in this judgment, including Dr Lucas’ opinion that the applicant’s “history, personality and attitude to his situation make me reasonably confident that he can be rehabilitated to settle in the community without undue difficulty”.

52 There remains the question of the length of the determinate sentence I should set and the length of the non-parole period I should set.

53 I was referred by counsel to a number of decided cases. I am conscious that there is only limited utility in comparing the present with other cases and I am also conscious that it has been held that there is no sub-class of murders consisting of “ordinary domestic murders” (R v Whitmore [1999] NSWCCA 75 at par 16 per Grove J, the other members of the Court agreeing). Nevertheless, there is some utility in comparing the present case with two of the cases to which I was referred by counsel R v Everett (unreported Court of Criminal Appeal 13 December 1995) and Rosevear in both of which a man had murdered his wife by pouring petrol over her and setting fire to her.

54 Everett was an appeal against conviction and an application for leave to appeal against sentence. The appeal against conviction was dismissed. However, the Court of Criminal Appeal reduced the sentence from a sentence of twenty-four years with a minimum term of eighteen years to a sentence of twenty-one years with a minimum term of sixteen years. Crucial to the decision of the Court of Criminal Appeal to allow the appeal against sentence was that the sentencing judge had not made a finding that Everett had the intention of killing his wife and had found that Everett might merely have had the intention of permanently scarring her.

55 In Rosevear Studdert J set a determinate sentence of twenty years with a minimum term of fifteen years. In his judgment in redetermining the life sentence Studdert J referred to the remarks on sentence he had delivered when originally sentencing Rosevear, in which his Honour had said that the jury must have been satisfied that Rosevear had an intention to kill or an intention to cause grievous bodily harm or that he had acted with reckless indifference to human life. Accordingly, in Rosevear as in Everett there was no finding that the offender had had an intention to kill the victim.

56 I consider that the present applicant’s offence was objectively worse than either of the offences in Everett and Rosevear. The present applicant had the intention to kill his wife. There was a higher degree of premeditation and planning in the present applicant’s offence. In neither Everett nor Rosevear was there a determination on the part of the offender to subject the victim to what the offender knew from personal experience would be agonising pain. In neither Everett nor Rosevear was the offence committed in the presence of a child.

57 Having taken into account the objective facts of the offence, the subjective features of the applicant, the applicant’s progress in prison, the other matters I am required to take into account by the provisions of Sch 1 and the various cases to which I was referred, I have decided that I should set a specified term for the sentence of twenty-five years.

58 In setting a non-parole period I recognise that I am setting a period on the expiration of which the applicant will merely be eligible to be released and will not necessarily be released and that the applicant will not be released until the Parole Board has decided that the release of the applicant is appropriate. On the other hand, in setting a non-parole period, I am required to set a period which I consider is the minimum term that justice requires that the applicant should serve in prison. See for example R v Bugmy (1990) 169 CLR 525 at 536 per Dawson, Toohey and Gaudron JJ. I have decided that I should set a non-parole period of nineteen years.

59 I set a specified term for the sentence of twenty-five years commencing on 22 September 1989 and expiring on 21 September 2014 with a non-parole period of nineteen years commencing on 22 September 1989 and expiring on 21 September 2008. I specify 21 September 2008 as the earliest day upon which the applicant will be eligible for release on parole.

**********

Last Modified: 10/21/2004